2006 (9) TMI 260

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....n 11-AB in terms of Section 11B of the Central Excise Act, 1944, by setting aside the Order of the Deputy Commissioner, Rourkela, who has erroneously ordered for refunding the same to the assessee. 2. At the stage of admission of this appeal in this Tribunal, learned J.D.R., Shri A. Hore for the Revenue raises a point that since the value of the appeal is less than Rs. 50,000.00 (Rupees fifty thousand), the Tribunal may not exercise the discretion vested in it in admitting the appeal. The issue relates to the liability to pay Service Tax on services received on goods transport operators and the same was shifted to the service recipients by Notification No. 42/97-S.T., dated 5-11-97, which inserted Rule 2(d)(xvii) of the Service Tax ....

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....provision as discretionary powers as provided under the second proviso to Section 35B(1) of the Central Excise Act, 1944. 4. In view of the aforesaid contentions raised by both sides, it is necessary to have a comparative study of both the provisions of Sections 35B and 35C of the Central Excise Act, 1944 with reference to the provisions of Sections 83 and 86 of the Finance Act, 1994. For better appreciation and comparative study, essence of the relevant provisions of Sections 35B and 35C of the Central Excise Act, 1944 as also Sections 83 and 86 of the Finance Act, 1944 are mentioned below : Section 35B of the Central Excise Act, 1944 Provision - Appeal to the Appellate Tribunal Sub-Section (1) deals with filing in appe....

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.... The Appellate Tribunal to send a copy of the Order to Commissioner Sub-Section (4) Finality of the Order of the Appellate Tribunal Section 83 of the Finance Act, 1994 adopts the following Sections of the Central Excise Act, 1944 in relation to the Service Tax as they apply in relation to a duty of excise : Sections - 9C, 9D, 11, 11B, 11BB, 11C, 11D, 12, 12A, 12B, 12C, 12D, 12E, 14, 15, 33A, 35F to 35-O, 35-Q, 36, 36A, 36B, 37A, 37B, 37C, 37D and 40. In the aforesaid provisions, Section 35B is omitted.   Section 86 of the Finance Act, 1994 Provisions in relation to the Service Tax Sub-Section (1) deals with the filing of an appeal by the aggrieved assessee under Sections 73, 83A, 84 and 85. Sub-Secti....

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.... Excise Act, 1944 and not under Section 35B of the said Act. The discretion vested with the Appellate Tribunal to refuse or admit an appeal where the value of the appeal is below Rs. 50,000.00 (Rupees fifty thousand) under the second proviso to Section 35B(1) of the Central Excise Act, 1944, is not available to the Appellate Tribunal under Section 86(7) of the Finance Act, 1994 or any other provision of the said Act for refusing or admitting an appeal. No separate provision under the Finance Act, 1994 is incorporated for hearing appeals and making Orders by the Appellate Tribunal, as provided under Section 35C of the Central Excise Act, 1944. It is seen that Section 86(7) similar to the provisions of Section 35C of the Central Excise Act, 1....